Captain Ed is a father and grandfather living in the Twin Cities area of Minnesota, a native Californian who moved to the North Star State because of the weather. He lives with his wife Marcia, also known as the First Mate, their two dogs, and frequently watch their granddaughter Kayla, whom Captain Ed calls The Little Admiral... [read more]

Quite a while back (two years ago), I wrote that the Supreme Court decision in Lawrence v Texas would open a Pandora's box about all sorts of cultural norms currently supported by statute throughout the United States. At the time, Jonathan Turley had written about the impending sentencing of Tom Green for polygamy, and opposed it on the basis of personal choice. I wrote:

I don't see anything particularly wrong with gay marriage, as long as a majority of voters approve it. I also think that the Texas sodomy laws were about as stupid as you could have found in any penal code. ... However, the Court used a sledgehammer when a flyswatter would have prevailed, and the consequences of their decision has led -- logically -- to the appeal of all anti-polygamy statutes. If in fact the Court applies the same thinking to polygamy as it did to the sodomy statutes, then they have no choice but to free Green and declare all anti-polygamy statutes null and void.

Perhaps that is the Libertarian stance. Maybe that's for the public good, although I highly doubt it. But the court once again has set itself in a position where its own precedent requires it to legislate, a usurpation of their Constitutional authority just as much as Lawrence was.

Not everything that transpires between consenting adults is legal or should be legal, let alone given Constitutional protection. But that's where the SCOTUS has left us. They should take the opportunity to reverse their precedent and acknowledge the error they made in Lawrence, before Constitutionally guaranteed prostitution and adult incest come next.

Today, we see the same argument, this time in a report on the efforts of polygamists to rehabilitate themselves in the media by the Washington Post. Their supporters use Lawrence much as Justice Scalia predicted in his dissent:

Valerie and others among the estimated 40,000 men, women and children in polygamous communities are part of a new movement to decriminalize bigamy. Consciously taking tactics from the gay-rights movement, polygamists have reframed their struggle, choosing in interviews to de-emphasize their religious beliefs and focus on their desire to live "in freedom," according to Anne Wilde, director of community relations for Principle Voices, a pro-polygamy group based in Salt Lake. ...

In their quest to decriminalize bigamy, practitioners have had help from unlikely quarters. HBO's series "Big Love," about a Viagra-popping man with three wives, three sets of bills, three sets of chores and three sets of kids, marked a watershed because of its sympathetic portrayal of polygamists. The U.S. Supreme Court's 2003 decision in Lawrence v. Texas, which voided laws criminalizing sodomy, also aided polygamy's cause because it implied that the court disapproved of laws that reach into the bedroom.

Since then, liberal legal scholars, generally no friend of the polygamists' conservative-leaning politics, have championed decriminalization. One of them is Jonathan Turley, a law professor at George Washington University who has written two op-eds for USA Today calling for the legalization of bigamy -- and same-sex marriage.

Scalia predicted legal assaults on bans against a whole range of sexual behavior as a result of the decision, but primarily polygamy. It seems from the description in this article that the local authorities may have read the writing on the wall from Lawrence and now decline to pursue cases against polygamists. The sheriff featured in the article has adopted what he calls a "don't ask, don't tell" policy that sounds very familiar indeed.

Clarence Thomas, in his dissent, said he would have voted to repeal the "silly" law overturned by Lawrence, and I agree. That's how it should have been handled, and the Supreme Court should have refused to impose a Constitutional standard in overturning it. They brought a sledgehammer where a scalpel should have been employed, and they established a standard of privacy that will undermine a host of well-established public policies, unless they repudiate Lawrence at some later date. They also signalled law enforcememt agencies that they cannot rely on any long-term stability in the law, undermining the law before they can even address it.

This again demonstrates the damage the court can do when it strays from its role of interpreting the Constitution as written, rather than as how they would like it to be.

Trackback Pings

» Rum, Sodomy, and the Lash: Response to Captain Ed from Big Lizards
In a Tuesday post, Captain Ed argues -- unconvincingly -- that the Supreme Court's decision in Lawrence v. Texas, which struck down all "anti-sodomy" laws nationwide, necessarily leads to the legalization of polygamy and same-sex marriage. But his argu... [Read More]

Tracked on November 23, 2006 7:28 AM

» Rum, Sodomy, and the Lash: Response to Captain Ed from Big Lizards
In a Tuesday post, Captain Ed argues -- unconvincingly -- that the Supreme Court's decision in Lawrence v. Texas, which struck down all "anti-sodomy" laws nationwide, necessarily leads to the legalization of polygamy and same-sex marriage. But his argu... [Read More]